Preview
Louis A Gonzalez, Jr., State Bar No. 157373
lgonzalez@weintraub.com
2 Kavan J. Jeppson, State Bar No. 327547
kjeppson@weintraub.com 1/24/2022
3 weintraub tobin chediak coleman grodin
LAW CORPORATION
4 400 Capitol Mall, 11th Floor
Sacramento, California 95814
5 Telephone: (916) 558-6000
Facsimile: (91 6) 446- 1611
6
Attorneys for Defendant
7 Brian Howe
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF BUTTE
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12 DEFENDANT'S REPLY TO PLAINTIFF'S
0 Plaintiff, OPPOSITION TO AUTOMATIC STAY
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BRIAN HOWE, an individual, Date: February 4, 2022
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19 Defendant Brian Howe (11 Defendant") submits the following reply to Plaintiff 13290
20 Contractors Lane, LLC's C'Plaintiff11 )
opposition to automatic stay.
21 I. INTRODUCTION
22 On December 23, 202 l, plaintiffs Erik Benik, Wishbone Ranch, LLC, and James Heath
23 filed a timely notice of appeal in the related matter Erik Benik et al v. Richard Bringgold et al.
24 The appeal challenges the statement of decision that concluded the litigation and dissolved a
11
25 preliminary injunction (the lnjunction 11 )on the property that is the subject matter of this current
11 11
26 dispute, located at 13290 Contractors Drive, Chico, California, 95973 (the Property ).
27 Ill
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{3349566 .DOCX:}
1
Defendant's Reply to Plaintiff s Objection to Automatic Stay
Plaintiff's characterization of whether the underlying Injunction is mandatory or prohibitory
2 is immaterial. Defining and preserving the status quo isthe key issue before the court to prevent
3 erosion of the parties' rights on appeal. Prior to the trial court's issuance of its statement of
4 decision, the status quo was that the Injunction prohibited any interference with Mr. Benik's
5 purchase option rights of the Property, including Mr. Benik's ability to accept rent from subtenants
6 to be credited towards his down payment on the Property. Plaintiff never appealed the Injunction.
7 Thus, when the trialcourt dissolved the Injunction, the status quo was altered.
8 The timely appeal of the trialcourt's decision automatically stayed the dissolution of the
9 Injunction to preserve the status quo under section 916 of the California Code of Civil Procedure
c:: 10 ("Section 916" or "§ 916"). Unless stayed pending appeal, any eviction of Mr. Benik's tenants
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12 in the underlying appeal.
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13 II. STATEMENT OF FACTS
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u 14 Wishbone Ranch, LLC, isDefendant's landlord, and has subleased Defendant space on
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I.. 16 A, Complaint at~ 6; Exhibit B, Answer at~ 3w.) On October 23, 2018, plaintiffs Erik Benik and
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11 17 Wishbone Ranch, LLC filed a breach of contract suit against defendants 13290 Contractors
18 Lane, LLC; Richard Bringgold; and Does 1 through 25, inclusive; Butte County Superior Case
19 No. 18CV03508. That action is now pending in the California Court of Appeal for the Third
20 Appellate District, Case No. C095469. (RJN at~ 3, Exhibit C, Notice of Appeal.) That action
21 and appeal affect titles to and/or the right of possession of the Property, which is also the subject
22 matter of the current unlawful detainer action filed by Plaintiff against Defendant.
23 The appeal challenges the statement of decision that concluded litigation, and dissolved
24 the Injunction on the Property. The Injunction enjoined 13290 Contractors Lane, LLC and Richard
25 Bringgold from, (1) initiating or maintaining unlawful detainer proceedings against plaintiffs
26 without showing good cause before this Court; (2) interfering with plaintiff Heath's sublease; and
27 (3) taking any action inconsistent with the existence of the purchase option rights of pla intiffs,
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{3349566.DOCX:} 2
Defendant's Reply to Plaintiff's Objection to Automatic Stay
including but not limited to selling, encumbering, or otherwise transferring any interest in the
2 property commonly known as 13290 Contractors Drive, in Chico, California. (RJN at 1f 4, Exhibit
3 D, Order on Motion for Preliminary Injunction.)
4 The underlying appeal will also challenge, in part, the court's statement of decision
5 regarding the applicability of the September 2016 Lease between Mr. Benik and 13290
6 Contractor's Lane, referred to by the trial court as 11 Lease l .11
Lease 1 granted Mr. Benik an option
7 to purchase the Property. (RJN at 1f 5, Exhibit E, Statement of Decision p. 2: 18-24.) Lease 1also
8 granted Mr. Benik the right to collect rent from subtenants, including Defendant, to be applied
9 to the down payment on the Property. (Ibid.)
C: 10 Ill. ARGUMENT
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C) 11 A. This Action Is Subject to Automatic Stay to Protect the Status Quo on Appeal
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E 12 Regardless of the Nature of the Injunction
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14 default. (See Daly v. San Bernardino County Bd. Of SupeNisors (2021) 11 Cal.5th 1030, 1040.)
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Except as provided
the perfecting of an
in Sections 917.1
appeal
to 917.9, inclusive, and in Section
stays proceedings in the trial court upon the
116.910,
judgment
or order appealed from or upon the matters embraced therein or affected thereby,
including enforcement of the judgment or order, but the trialcourt may proceed
18 upon any other matter embraced in the action and not affected by the judgment
or order.
19
(emphasis added.)
20
11
As the California Supreme Court recently noted, [0] prohibitory injunction remains in full
21
force pending such an appeal, and the court below may enforce obedience thereto; but a
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mandatory injunction is stayed by the operation of such appeal, the object of the rule in both
23
cases being to preserve the status quo." (Daly, supra, 11 Cal.5th at pp. 1040-41, emphasis
24
added.) Further, "[w]here the statutory conditions have been met and a stay on appeal is
25
prescribed, the court lacks discretion to deny it except as other statutes may authorize ... " (Id. at
26
p. 1040.)
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{3349566.DOCX:} 3
1
Defendant's Reply to Plaintiff s Objection to Automatic Stay
Plaintiff1s opposition baldly contends that, 11
[e]victing Brian Howe is not an action
2 inconsistent with the existence of the purchase option right 11
because 11
they will have the right to
3 purchase the subject building no matter who occupies Mr. Howe s leased
1
space. 11 (Opposition
11
4 Opp. 11 at pp. 3: 25-28; 4: 1.) Plaintiff1s assertion entirely misses itsmark.
5 The status quo before the dissolution of the Injunction was that Plaintiff was barred from
6 taking any action inconsistent with the existence of the purchase option rights of [Mr. Benik],
7 including but not limited to selling, encumbering, or otherwise transferring any interest in the
8 property commonly known as 13290 Contractors Drive, in Chico, California. (RJN., ,r 4; Exhibit
9 D, Order on Motion for Preliminary Injunction.) Plaintiff could have immediately appealed the
c:: 10 Injunction, but chose not to. (See Brydon v. Hermosa Beach (1928) 93 Cal. App. 615, 620 [270
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13 The status quo included Mr. Benik 1s right to collect rent from Defendant to be applied
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14 toward the down payment on the Property - an issue that will be raised on appeal. (RJN at ,r5;
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16 the status quo was not altered until the Injunction was dissolved. Thus, the perfecting of the
;1 17 appeal preserves the status quo and mandates a stay of all matters embraced therein or affected
18 thereby the trial court 1s statement of decision, including this instant action. (Code Civ. Proc., §
19 916(0).)
40 Accordingly, the automatic stay requested herein will serve to maintain the status quo,
21 while refusing such a stay would destroy (rather than preserve) the status quo and lead to
22 irreparable harm on appeal. (See URS Corp. v. Atkinson/Walsh Joint Venture (2017) 15
23 Cal.App.5th 872, 884-886 [explaining why altering the status quo pending appeal is
24 i m permissible].)
25 B. Section 11 7 6(a) Does Not Prevent an Automatic Stay In this Matter
26 Plaintiff asserts, with negligible analysis, that Code of Civil Procedure section 117 6(0)
27 prevents an automatic stay, relying on Se/ma Auto Mall II v. Appellate Department (1996) 44
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{3349566.DOCX:} 4
Defendant's Reply to Plaintiff's Objection to Automatic Stay
Cal.App.4th 1672. Plaintiff's argument is not supported by its own authorities.
2 First, section l l 7 6(0) applies to stays of enforcement in unlawful detainer actions. The
3 underlying action on appeal is not one for unlawful detainer. The underlying action isbased on
4 a breach of contract and other related claims. Second, the court's analysis in Se/ma Auto Mall
5 was focused on whether section 117 6(0) or section 91 7.4 applied to a stay of an unlawful
6 detainer action. (44 Cal.App.4th at p. 1682.). Selma Auto Mall did not analyze the interpretation
7 of§ 916, nor does this case invalidate the statutory provisions laid out in § 916 which mandates
8 an automatic stay pending appeal "upon the matters embraced therein or affected thereby,
11
9 including enforcement of judgment or order. (Code Civ. Proc., § 916, subd. (a) (emphasis
C: 10 added); see Byington, supra, 14 Cal. at p. 70.) As a result, neither section ll 76(a) or Selma
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12 IV. CONCLUSION
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13 For the foregoing reasons, Defendant respectfully submits that this Court should order a
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14 stay of this action to preserve the status quo pending the outcome of the underlying appeal.
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Respectfully submitted,
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Dated: January 24, 2022 WEINTRAUB TOBIN CHEDIAK COLEMAN GRODIN
18 Law Corporation
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By: _ _ _-H--- ~ r----At'----
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21 ' BN 327547
Attorneys or efendant
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{3349566.DOCX:} 5
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Defendant's Reply to Plaintiff s Objection to Automatic Stay
PROOF OF SERVICE
2 I am a citizen of the United States, employed in the City and County of Sacramento, California.
My business address is 400 Capitol Mall, 11th Floor, Sacramento, California 95814. I am over
3 the age of 18 years and not a party to, nor interested in, the within action. On this date, I caused
to be served the following:
4
DEFENDANT'S REPLY TO PLAINTIFF'S OBJECTION TO AUTOMATIC STAY
5
6
X United States mail by placing such envelope(s) with postage thereon fully prepaid in
7 the designated area for outgoing mail in accordance with this office's practice
whereby the mail isdeposited in a United States mailbox after the close of the day's
8 business.
9 By personally delivering, or causing to be delivered, a true copy thereof to the persons
at the addresses set forth below.
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:.a0 Via overnight courier
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12 email addresse(s) below on this date before 5:00 p.m.
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14 Gregory M. Finch
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16 Sacramento, CA 95827-2614
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18 Attorney for Plaintiff 13290 Contractors Lane,
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I declare under penalty of perjury that the foregoing is true and correct.
21
Executed January 24, 2022, at Sacramento, Californi~ ..---·-..,.
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24 Tracy Thorne
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{3349566.DOCX:} 6
Defendant's Reply to Plaintiff's Objection to Automatic Stay
Preview
Louis A Gonzalez, Jr., State Bar No. 157373 lgonzalez@weintraub.com 2 Kavan J. Jeppson, State Bar No. 327547 kjeppson@weintraub.com 1/24/2022 3 weintraub tobin chediak coleman grodin LAW CORPORATION 4 400 Capitol Mall, 11th Floor Sacramento, California 95814 5 Telephone: (916) 558-6000 Facsimile: (91 6) 446- 1611 6 Attorneys for Defendant 7 Brian Howe 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF BUTTE C: 10 :a0 1- C) l l 13290 CONTRACTORS LANE, LLC, a Case No. 21 UD02707 C: C'il California limited liability company, E Cl) 12 DEFENDANT'S REPLY TO PLAINTIFF'S 0 Plaintiff, OPPOSITION TO AUTOMATIC STAY 0 ~ ffl 13 ~ vs . (I) .r:. (.) 14 C: BRIAN HOWE, an individual, Date: February 4, 2022 :c0C 15 Time: 1 :30 p.m. .... 0 .0 :;::; Defendant . Dept: VLG ::s~ cu 0 ....C '- ...C.o16 Commissioner Virginia L. Gingery ·- I,) (I) :C ~ ~ l7 18 19 Defendant Brian Howe (11 Defendant") submits the following reply to Plaintiff 13290 20 Contractors Lane, LLC's C'Plaintiff11 ) opposition to automatic stay. 21 I. INTRODUCTION 22 On December 23, 202 l, plaintiffs Erik Benik, Wishbone Ranch, LLC, and James Heath 23 filed a timely notice of appeal in the related matter Erik Benik et al v. Richard Bringgold et al. 24 The appeal challenges the statement of decision that concluded the litigation and dissolved a 11 25 preliminary injunction (the lnjunction 11 )on the property that is the subject matter of this current 11 11 26 dispute, located at 13290 Contractors Drive, Chico, California, 95973 (the Property ). 27 Ill 28 {3349566 .DOCX:} 1 Defendant's Reply to Plaintiff s Objection to Automatic Stay Plaintiff's characterization of whether the underlying Injunction is mandatory or prohibitory 2 is immaterial. Defining and preserving the status quo isthe key issue before the court to prevent 3 erosion of the parties' rights on appeal. Prior to the trial court's issuance of its statement of 4 decision, the status quo was that the Injunction prohibited any interference with Mr. Benik's 5 purchase option rights of the Property, including Mr. Benik's ability to accept rent from subtenants 6 to be credited towards his down payment on the Property. Plaintiff never appealed the Injunction. 7 Thus, when the trialcourt dissolved the Injunction, the status quo was altered. 8 The timely appeal of the trialcourt's decision automatically stayed the dissolution of the 9 Injunction to preserve the status quo under section 916 of the California Code of Civil Procedure c:: 10 ("Section 916" or "§ 916"). Unless stayed pending appeal, any eviction of Mr. Benik's tenants :.a0 ... O> 11 will alter the status quo and will cause severe and irreparable damage to the rights of the parties C: cu E (I.) 12 in the underlying appeal. 0 0 ..\It:: «I 13 II. STATEMENT OF FACTS :.a<1' .I::. u 14 Wishbone Ranch, LLC, isDefendant's landlord, and has subleased Defendant space on c:: :c0C 15 the Property since approximately June 201 7. (Request for Judicial Notice, 11 RJN 11 at~~ 1 -2; Exhibit .... 0 .c:.:; E :::s ...... n:I 0 C. I.. 16 A, Complaint at~ 6; Exhibit B, Answer at~ 3w.) On October 23, 2018, plaintiffs Erik Benik and c::0 ·- c., 11 17 Wishbone Ranch, LLC filed a breach of contract suit against defendants 13290 Contractors 18 Lane, LLC; Richard Bringgold; and Does 1 through 25, inclusive; Butte County Superior Case 19 No. 18CV03508. That action is now pending in the California Court of Appeal for the Third 20 Appellate District, Case No. C095469. (RJN at~ 3, Exhibit C, Notice of Appeal.) That action 21 and appeal affect titles to and/or the right of possession of the Property, which is also the subject 22 matter of the current unlawful detainer action filed by Plaintiff against Defendant. 23 The appeal challenges the statement of decision that concluded litigation, and dissolved 24 the Injunction on the Property. The Injunction enjoined 13290 Contractors Lane, LLC and Richard 25 Bringgold from, (1) initiating or maintaining unlawful detainer proceedings against plaintiffs 26 without showing good cause before this Court; (2) interfering with plaintiff Heath's sublease; and 27 (3) taking any action inconsistent with the existence of the purchase option rights of pla intiffs, 28 {3349566.DOCX:} 2 Defendant's Reply to Plaintiff's Objection to Automatic Stay including but not limited to selling, encumbering, or otherwise transferring any interest in the 2 property commonly known as 13290 Contractors Drive, in Chico, California. (RJN at 1f 4, Exhibit 3 D, Order on Motion for Preliminary Injunction.) 4 The underlying appeal will also challenge, in part, the court's statement of decision 5 regarding the applicability of the September 2016 Lease between Mr. Benik and 13290 6 Contractor's Lane, referred to by the trial court as 11 Lease l .11 Lease 1 granted Mr. Benik an option 7 to purchase the Property. (RJN at 1f 5, Exhibit E, Statement of Decision p. 2: 18-24.) Lease 1also 8 granted Mr. Benik the right to collect rent from subtenants, including Defendant, to be applied 9 to the down payment on the Property. (Ibid.) C: 10 Ill. ARGUMENT :s0 ... C) 11 A. This Action Is Subject to Automatic Stay to Protect the Status Quo on Appeal C: cu E 12 Regardless of the Nature of the Injunction Cl> 0(,) .:.:: 13 Code of Civil Procedure section 916 continues to make a stay pending appeal the cu :sCl> .c: (,) 14 default. (See Daly v. San Bernardino County Bd. Of SupeNisors (2021) 11 Cal.5th 1030, 1040.) C: :c0C 15 Specifically, Section 916(0) provides: -o .0~ -;i ::J cu ... C: I! 0 C. 0... ·-"' 16 17 Except as provided the perfecting of an in Sections 917.1 appeal to 917.9, inclusive, and in Section stays proceedings in the trial court upon the 116.910, judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trialcourt may proceed 18 upon any other matter embraced in the action and not affected by the judgment or order. 19 (emphasis added.) 20 11 As the California Supreme Court recently noted, [0] prohibitory injunction remains in full 21 force pending such an appeal, and the court below may enforce obedience thereto; but a 22 mandatory injunction is stayed by the operation of such appeal, the object of the rule in both 23 cases being to preserve the status quo." (Daly, supra, 11 Cal.5th at pp. 1040-41, emphasis 24 added.) Further, "[w]here the statutory conditions have been met and a stay on appeal is 25 prescribed, the court lacks discretion to deny it except as other statutes may authorize ... " (Id. at 26 p. 1040.) 27 Ill 28 {3349566.DOCX:} 3 1 Defendant's Reply to Plaintiff s Objection to Automatic Stay Plaintiff1s opposition baldly contends that, 11 [e]victing Brian Howe is not an action 2 inconsistent with the existence of the purchase option right 11 because 11 they will have the right to 3 purchase the subject building no matter who occupies Mr. Howe s leased 1 space. 11 (Opposition 11 4 Opp. 11 at pp. 3: 25-28; 4: 1.) Plaintiff1s assertion entirely misses itsmark. 5 The status quo before the dissolution of the Injunction was that Plaintiff was barred from 6 taking any action inconsistent with the existence of the purchase option rights of [Mr. Benik], 7 including but not limited to selling, encumbering, or otherwise transferring any interest in the 8 property commonly known as 13290 Contractors Drive, in Chico, California. (RJN., ,r 4; Exhibit 9 D, Order on Motion for Preliminary Injunction.) Plaintiff could have immediately appealed the c:: 10 Injunction, but chose not to. (See Brydon v. Hermosa Beach (1928) 93 Cal. App. 615, 620 [270 =s0 ...ti'> 11 P.2d 255] (holding that "all orders granting or refusing injunctions, whether temporary or C: ffl E 12 permanent or provisional pending appeal, shall be appealable") . ID 0 CJ ~ ro 13 The status quo included Mr. Benik 1s right to collect rent from Defendant to be applied =s (I) .r::, (.) 14 toward the down payment on the Property - an issue that will be raised on appeal. (RJN at ,r5; s:: :.0 15 Exhibit E, Statement of Decision p. 2: 18-24.) The nature of the injunction isimmaterial because 0 C: - o .c :.::; - ~ ::i C'II 0 ... Cl. ,_ s:: ·- 0 u 16 the status quo was not altered until the Injunction was dissolved. Thus, the perfecting of the ;1 17 appeal preserves the status quo and mandates a stay of all matters embraced therein or affected 18 thereby the trial court 1s statement of decision, including this instant action. (Code Civ. Proc., § 19 916(0).) 40 Accordingly, the automatic stay requested herein will serve to maintain the status quo, 21 while refusing such a stay would destroy (rather than preserve) the status quo and lead to 22 irreparable harm on appeal. (See URS Corp. v. Atkinson/Walsh Joint Venture (2017) 15 23 Cal.App.5th 872, 884-886 [explaining why altering the status quo pending appeal is 24 i m permissible].) 25 B. Section 11 7 6(a) Does Not Prevent an Automatic Stay In this Matter 26 Plaintiff asserts, with negligible analysis, that Code of Civil Procedure section 117 6(0) 27 prevents an automatic stay, relying on Se/ma Auto Mall II v. Appellate Department (1996) 44 28 {3349566.DOCX:} 4 Defendant's Reply to Plaintiff's Objection to Automatic Stay Cal.App.4th 1672. Plaintiff's argument is not supported by its own authorities. 2 First, section l l 7 6(0) applies to stays of enforcement in unlawful detainer actions. The 3 underlying action on appeal is not one for unlawful detainer. The underlying action isbased on 4 a breach of contract and other related claims. Second, the court's analysis in Se/ma Auto Mall 5 was focused on whether section 117 6(0) or section 91 7.4 applied to a stay of an unlawful 6 detainer action. (44 Cal.App.4th at p. 1682.). Selma Auto Mall did not analyze the interpretation 7 of§ 916, nor does this case invalidate the statutory provisions laid out in § 916 which mandates 8 an automatic stay pending appeal "upon the matters embraced therein or affected thereby, 11 9 including enforcement of judgment or order. (Code Civ. Proc., § 916, subd. (a) (emphasis C: 10 added); see Byington, supra, 14 Cal. at p. 70.) As a result, neither section ll 76(a) or Selma :s0 I.. a, l l Auto Mall prevent an automatic stay of this action. C: ffl E Q) 12 IV. CONCLUSION 0(.) ~ ro 13 For the foregoing reasons, Defendant respectfully submits that this Court should order a ~ Q) J: (.) 14 stay of this action to preserve the status quo pending the outcome of the underlying appeal. C: :0 15 .s § .0 ~ ~ :::i ...cu . C) Q. I.. 16 Respectfully submitted, ·- C:0 ;1(,) 17 Dated: January 24, 2022 WEINTRAUB TOBIN CHEDIAK COLEMAN GRODIN 18 Law Corporation 19 20 By: _ _ _-H--- ~ r----At'---- - - - - -- - - - - 21 ' BN 327547 Attorneys or efendant 22 23 24 25 26 27 28 {3349566.DOCX:} 5 1 Defendant's Reply to Plaintiff s Objection to Automatic Stay PROOF OF SERVICE 2 I am a citizen of the United States, employed in the City and County of Sacramento, California. My business address is 400 Capitol Mall, 11th Floor, Sacramento, California 95814. I am over 3 the age of 18 years and not a party to, nor interested in, the within action. On this date, I caused to be served the following: 4 DEFENDANT'S REPLY TO PLAINTIFF'S OBJECTION TO AUTOMATIC STAY 5 6 X United States mail by placing such envelope(s) with postage thereon fully prepaid in 7 the designated area for outgoing mail in accordance with this office's practice whereby the mail isdeposited in a United States mailbox after the close of the day's 8 business. 9 By personally delivering, or causing to be delivered, a true copy thereof to the persons at the addresses set forth below. C: 10 :.a0 Via overnight courier L. O') l l C: ffl Via ELECTRONIC DELIVERY: By transmitting electronically the listed document(s) to the E Cl) 12 email addresse(s) below on this date before 5:00 p.m. 0 0 ~ ffl 13 :.aCD .c CJ 14 Gregory M. Finch C: :.0 15 Signature Law Group, LLP 0 C: +' 0 .c:.:; 3400 Bradshaw Road, Suite A-4A :::, f! n:s 0 0. I.. +,I... 16 Sacramento, CA 95827-2614 C:0 ·- c.> Email: gfinch @signaturelawgrou p.com ;i 17 18 Attorney for Plaintiff 13290 Contractors Lane, LLC 19 20 I declare under penalty of perjury that the foregoing is true and correct. 21 Executed January 24, 2022, at Sacramento, Californi~ ..---·-..,. 22 ( , - -I\ 23 '--- 'l'[c{G-{ V, , _,,....,. \ 24 Tracy Thorne 25 26 27 28 {3349566.DOCX:} 6 Defendant's Reply to Plaintiff's Objection to Automatic Stay